Justice Watch: The Alliance for Justice Blog

July 2015

This past Supreme Court term was a tough one for Justice Antonin Scalia. On a number of important cases, a majority of the Court rejected his extremist conservative ideology and upheld important laws and constitutional rights protecting women, the LGBT community, and working Americans. And Justice Scalia was none too happy with it.

Through all the derision, hyperbole, and “straining-to-be-memorable” insults, it can be easy to confuse a Justice Scalia opinion with the latest commentary on Fox News. As Scalia’s extreme views become further marginalized on the Court, his writing reads more like conservative talking points than actual legal argument. See for yourself. Take our quiz.

Question 1: Will the Court do anything to save the ACA?

“The interpretive somersaults [of the Court’s two decisions on the ACA] will surely be remembered through the years. . . . And these two cases will publish forever the discouraging truth that the Supreme Court of the United States favors some laws over others, and that it is prepared to sacrifice all the usual interpretive principles—that it is prepared to do whatever it takes—to uphold and assist its favorites.”

WHO SAID IT?

Justice Scalia

Congrats! Scalia made the statementwhen he announced his dissent from the bench—a tradition reserved for the cases where justices most strongly disagree with each other.

But it would be easy to confuse the statement with that of a conservative pundit. Before oral argument in the case, Rush Limbaugh said during his show, “At what point does the Constitution matter? This is a clear abdication. This is a clear violation. The entire Obamacare law itself is [unconstitutional], and should have been declared so, the first time before the court. The chief justice had to rewrite parts of it to make it appear to be constitutional and to save it.”

Rush Limbaugh

Close! Before oral argument in the case, Rush Limbaugh said during his show, “At what point does the Constitution matter? This is a clear abdication. This is a clear violation. The entire Obamacare law itself is [unconstitutional], and should have been declared so, the first time before the court. The chief justice had to rewrite parts of it to make it appear to be constitutional and to save it.”

Scalia offered his version while reading his dissent from the bench—a tradition reserved for the cases where justices most strongly disagree with each other.

Question 2: Ministers being forced to marry same-sex couples?

“[I]s it conceivable that a minister who is authorized by the State to conduct marriage can decline to marry two men . . . ? Is it conceivable that that would be allowed? . . . I don’t see how you could possibly allow that minister to say, I will only marry a man and a woman.”

WHO SAID IT?

Justice Scalia

Congrats! During oral argument in Obergefell, Justice Scalia asserted that, if the Court ruled in favor of same-sex couples, ministers would be forced to perform marriage ceremonies for same-sex couples. The claim is baseless. The constitutionality of same-sex marriage has nothing to do with the religious liberty of ministers.

But it would be easy to confuse the statement with one from a right-wing extremist. Jeremy Tedesco, counsel for the far-right Alliance Defending Freedom, recently said, “Many have denied that pastors would ever be forced to perform ceremonies that are completely at odds with their faith, but that’s what is happening here—and it’s happened this quickly.”

Jeremy Tedesco

Close! Jeremy Tedesco, counsel for the far-right Alliance Defending Freedom, recently said, “Many have denied that pastors would ever be forced to perform ceremonies that are completely at odds with their faith, but that’s what is happening here—and it’s happened this quickly.”

But it was Scalia who asserted during oral argument in Obergefell that, if the Court ruled in favor of same-sex couples, ministers would be forced to perform marriage ceremonies for same-sex couples. The claim was baseless. The constitutionality of same-sex marriage has nothing to do with the religious liberty of ministers.

Question 3: Is same-sex marriage a threat to democracy?

“Gay-rights groups have begun a scorched-earth policy against anybody who opposes their agenda. And the ultimate victim may be democracy itself.”

WHO SAID IT?

Justice Scalia

Close! In Scalia’s Obergefell dissent, he claimed the decision legalizing same-sex marriage was a threat to democracy: “A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.”

But it was the late evangelical Christian leader Chuck Colson, a hatchet man for President Nixon who found religion shortly before going to jail for obstruction of justice, who made the similar claim four years earlier. Audio is available here.

Chuck Colson

Congrats! In 2011, the late evangelical Christian leader Chuck Colson, a hatchet man for President Nixon who found religion shortly before going to jail for obstruction of justice, claimed same-sex marriage could ruin our democracy.

It would be easy to confuse the statement with Scalia’s. In his Obergefell dissent, the justice made a similar claim regarding the decision to legalize same-sex marriage: “A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.” Audio is available here.

Question 4: Is opposing the death penalty really about ego?

“Manifestly, these death penalty hysterics do not care about the victims of crime. But they don’t really care about the killers, either. Their only objective is to increase their self-esteem. This is why liberal arguments against the death penalty are always circular. It’s not about logic; it’s about their conception of themselves.”

WHO SAID IT?

Justice Scalia

Close! In Scalia’s Glossip concurrence, he similarly criticized two justices on the Court who called for the abolition of the death penalty: “A vocal minority of the Court, waving over their heads a ream of the most recent abolitionist studies (a superabundant genre) as though they have discovered the lost folios of Shakespeare, insist that now, at long last, the death penalty must be abolished for good. Mind you, not once in the history of the American Republic has this Court ever suggested the death penalty is categorically impermissible.”

But it was Ann Coulter who made the above statement in May, claiming that opposition to the death penalty was about self-esteem.

Ann Coulter

Congrats! In May, Ann Coulter claimed that opposition to the death penalty was about self-esteem.

But it would be easy to confuse the statement with something said by Scalia. In his Glossip concurrence, Scalia similarly criticized two justices on the Court who called for the abolition of the death penalty: “A vocal minority of the Court, waving over their heads a ream of the most recent abolitionist studies (a superabundant genre) as though they have discovered the lost folios of Shakespeare, insist that now, at long last, the death penalty must be abolished for good. Mind you, not once in the history of the American Republic has this Court ever suggested the death penalty is categorically impermissible.”

Question 5: Extra Credit

“We look at the law. And the law includes the ’68 [Fair Housing] act and the ’88 amendments [to the act]. And I – I find it hard to read those two together in any other way than there is such a thing as disparate impact.”

WHO SAID IT?

Justice Scalia

Congrats! Yes, it was Scalia. During oral argument in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, a case where the Court ultimately upheld an important tool for enforcement of the Fair Housing Act known as “disparate impact,” Scalia appeared to echo the arguments of civil rights advocates.

The Fair Housing Act was passed in 1968. Twenty years later, Congress amended the act. It added additional protected classes, rejected an amendment to prohibit disparate impact claims, and, most importantly, created three exceptions to disparate impact liability. These amendments would be meaningless, the plaintiffs argued, if the Fair Housing Act didn’t include disparate impact claims. And Scalia seemed to agree.

But when it came time to issue a decision, his vote did not reflect these views. He joined Justice Samuel Alito’s dissent which called the very argument he made before “deeply flawed.”

Justice Anthony Kennedy

Close! But actually, it was Scalia. During oral argument in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, a case where the Court ultimately upheld an important tool for enforcement of the Fair Housing Act known as “disparate impact,” Scalia appeared to echo the arguments of civil rights advocates. The Fair Housing Act was passed in 1968. Twenty years later, Congress amended the act. It added additional protected classes, rejected an amendment to prohibit disparate impact claims, and, most importantly, created three exceptions to disparate impact liability. These amendments would be meaningless, the plaintiffs argued, if the Fair Housing Act didn’t include disparate impact claims. And Scalia seemed to agree.

But when it came time to issue a decision, his vote did not reflect these views. He joined Justice Samuel Alito’s dissent which called the very argument he made before “deeply flawed.”

Have your own examples? Tweet #ScaliaSaidIt to @AFJustice to share more outrageous examples of things Justice Scalia has said.

At Wednesday’s Senate Judiciary Committee hearing, Republican Senator Jeff Sessions provided a model lesson in why there is so little professional diversity among our federal judges.

Sen. Sessions

Turning to District of Maryland nominee Paula Xinis, Sessions unleashed a line of accusatory questions suggesting that Xinis’ career as a public defender and civil rights lawyer showed an “agenda” that she would invariably “bring to the bench.” The questions were absurd and unfounded, but they could not be dismissed as such. Instead, Xinis had to patiently explain that protecting the rights of America’s most vulnerable and disenfranchised had not left her tainted with disqualifying bias.

Unfortunately, such questions are not unusual, and Jeff Sessions is not alone in asking them—rather,
they illustrate a systemic problem with the current process of judicial selection and the deeply entrenched presumptions attached to certain legal careers.

Public defenders and civil rights lawyers (as well as plaintiffs’ lawyers generally) are dramatically underrepresented among federal judges. Just 14 percent of President Obama’s judicial nominees have been public defenders, while about 41 percent have been prosecutors. Likewise, only 3.2 percent of nominees have worked as civil rights lawyers, while 72 percent have been corporate attorneys. Xinis’ nomination reflects continued improvement—already in 2015 the president has nominated four public defenders (out of 12 total nominations), and Rhode Island’s senators recently recommended a potential fifth public defender for nomination—yet the wide disparity remains.

Beyond specific categories of law practice, these numbers reveal a broader truth: our federal courts are staffed largely with judges who, in their legal careers before taking the bench, represented only the most powerful in American society, either defending massive corporations or wielding the enormous power of the state against criminal defendants. Only a small minority of judges have experience representing indigent defendants or other low-income clients, the very people who depend most on our courts to provide equal justice.

In part, this is due to the mistaken but rarely questioned notion that lawyering to preserve influence and privilege—to cement rather than challenge the status quo through legal practice—is somehow impartial and cannot possibly come to bear in judicial decisionmaking. In a recent panel discussion led by Alliance for Justice, D.C. Circuit Judge Nina Pillard noted how “[t]here’s a sense, somehow, in the process of finding judges or candidates, that being in a large corporate law firm is neutral and being an advocate for people who have been subject to discrimination or retaliation or repression of their speech or their religious beliefs is not neutral, and . . . I would question that.”

This skewed sense of what’s “neutral” emerged during Senator Sessions’ questioning of Paula Xinis. Sessions felt compelled to verify that someone with Xinis’ professional background—which also includes time as a complaint examiner in D.C.’s Office of Police Complaints—would not be biased against police officers. After asking whether “police have a responsibility to try to maintain an orderly and safe environment for the people who live in a city,” and whether a judge “should show empathy for the difficulties that police officers face as well as” for those who allege that police have violated their civil rights, Sessions closed with this:

Can you assure the police officers in Baltimore and all over Maryland that might be brought before your court that they’ll get a fair day in court, and that your history would not impact your decisionmaking? And I raise that particularly because I see your firm is representing Mr. Freddie Gray in that case that’s gathered so much attention in Maryland, and there’s lots of law enforcement officers throughout the state and they want to know that they don’t have someone who has an agenda to bring to the bench—can you assure them that you won’t bring that to the bench?

The implication is clear: if you defend people against criminal prosecutions, and especially if you represent people in civil rights cases against police, there is a presumption of bias that you must rebut before the Judiciary Committee. One wonders whether Sessions has asked a prosecutor if she would bring to her judicial role an “agenda” against indigent criminal defendants. Or if a corporate defense lawyer would be biased against employees who allege unlawful discrimination or unpaid wages. I doubt very much that he has.

The depth of this double-standard is underscored by Sessions’ invoking Freddie Gray in particular. Gray, of course, was fatally injured in Baltimore police custody after being arrested without cause. His death led to grand jury indictments for six officers on homicide and assault charges, and the Department of Justice opened a civil rights investigation. Under these circumstances, representing Gray’s family hardly seems like an act of radical subversion that would call into question one’s ability to fairly and impartially apply the law. But in Sessions’ view, any challenge to police authority, even in a case as egregious as Freddie Gray’s, can be done only in pursuit of some extra-legal “agenda.”

Professional diversity in the judiciary matters. Judge Pillard called it “a deficit in our courts” that “we haven’t had [judges] who’ve represented less well-to-do, less institutionally-established clients[.]” And the point isn’t that one kind of lawyer is neutral and impartial while another kind of lawyer is not. Nor is it that corporate lawyers are necessarily bad judges and public defenders are necessarily good. It’s that all judges, regardless of background, are shaped by the perspectives and experiences acquired over many years in the law. Fair and equal courts require a diversity of these perspectives, not any one in particular, and this week’s hearing reminds us of how hard that is to achieve.

But this much is clear: the problem is much bigger than Senator Sessions, and solving it requires everyone involved in judicial selection and who cares about the courts to talk openly about and promote the value of professional diversity.

Earlier this week, the Department of Defense announced it will be expanding the Military Lending Act to cap interest rates and prohibit forced arbitration in credit cards, payday loans, vehicle title loans, refund anticipation loans, and other types of loans made to service members. A previous rule had been riddled with loopholes that allowed lenders to charge exorbitant fees and avoid the arbitration ban. The expansion is an important step toward protecting troops who are often targeted by predatory lenders before being deployed.

The news comes as the Consumer Financial Protection Bureau (CFPB) moves toward rulemaking of its own on forced arbitration. On Wednesday of last week, CFPB Director Richard Cordray confirmed the agency would soon be announcing a rule on the use of forced arbitration in financial products for all American consumers.

The decision follows two studies conducted by the agency that demonstrated the prevalence of forced arbitration and the harm it causes. Tens of millions of consumers use products under the CFPB’s jurisdiction that contain forced arbitration clauses. For some products, including payday loans and cell phones, nearly every contract signed by a consumer has an arbitration clause in it. Yet most consumers mistakenly believed they could still sue their employer in court or join others in such a suit. Once in arbitration, the report found that businesses won 93 percent of their claims and counterclaims.

Industry groups and congressional Republicans have already begun to fight back. An amendment to the Financial Services Appropriations Bill would require the CFPB to conduct yet another, duplicative study—at taxpayer expense—before beginning the rulemaking process. And in a transparent attempt to create further delay, the American Bankers Association, the Consumer Bankers Association, and The Financial Services Roundtable made similar demands in a recent letter to the CFPB.

Yet these efforts have not been enough to stall our momentum. The CFPB has confirmed its intention to initiate the rulemaking process despite industry objections, and for now the financial services bill has stalled on the House floor. More than three years after the CFPB began work on its arbitration study, meaningful change is finally on its way.

This month marks the five year anniversary of the Dodd-Frank Wall Street Reform and Consumer Protection Act, which gives the CFPB its authority to ban forced arbitration clauses in the financial industry, and the four year anniversary of the CFPB itself. On these important birthdays, recent efforts to curtail forced arbitration provide reason to celebrate—but there is more work to be done. Industry opposition will continue. The rulemaking process, once underway, will be contentious. And AFJ will be there fighting every step of the way.

There is no doubt the state of Texas is at the epicenter of what is a growing judicial vacancy crisis. It has the most judicial vacancies of any state in the country (nine, all without a nominee), a quarter of the nation’s judicial emergencies, and some of the longest-standing vacancies in the judiciary. Former Southern District of Texas Judge Janis Graham Jack’s seat has been vacant for over four years. Former Fifth Circuit Judge Emilio M. Garza’s vacant Texas seat is fast approaching its third anniversary.

Yet, despite this dire situation, Senator John Cornyn, R-Texas, wrote in a recent letter to the editor that he had been “working . . . to fill openings as they arise,” pointing to the confirmation of 12 Texas judges in the past six years of President Obama’s administration.

While we commend Senator Cornyn for working with the president to find 12 qualified judges, that hasn’t been nearly enough to keep pace with the growing number of vacancies in the state. As we have noted many, many times, confirmation totals are meaningless unless considered beside the number of vacancies that need to be filled. There is no magic number of confirmations that is “enough”—empty benches need judges.

And far from “filling openings as they arise,” the senator’s sluggish pace on nominations and confirmations has allowed Texas vacancies to amass. As we detail in our report on Texas, Senators Cornyn and Ted Cruz, R-Texas, have refused to screen candidates for seats they know will soon be vacant, waiting instead until the judge leaves office with no one to take on their workloads. Several judges—to no avail—have given the senators a year’s notice of their intent to retire and urged them to start seeking a replacement immediately. This inefficient approach only allows current vacancies to languish and new retirements to pile up.

The nine vacant Texas seats have now sat empty for a combined 13 years. If Senator Cornyn is serious about finding “high-caliber legal minds” for the bench, there are plenty of places to start. Rather than focus on what he’s accomplished, it’s time to look at what’s left to do.